Body Corporate for Nottingham Terraces v Queensland Building and Construction Commission [2026] QCAT 292

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Body Corporate for Nottingham Terraces CTS 52663 v QBCC [2026] QCAT 292 PARTIES: BODY CORPORATE FOR NOTTINGHAM TERRACES CTS 52663 (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR017-24 MATTER TYPE: General administrative review matters DELIVERED ON: 30 June 2026 HEARING DATE: 28 May 2026 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: The decision of the Queensland Building and Construction Commission made 30 November 2023 to disallow a claim under the statutory insurance scheme is confirmed. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME - where a body corporate for a community title scheme engaged leak detection tradespeople to investigate water entry throughout lots – where the tradespeople found extensive defective work by the original builder causing water leaks – where the body corporate through a strata title manager engaged as agent made complaint to the Commission about the defective work - where the body corporate committee was found to be aware of the defects when the agent informed the builder of the defective work found by the leak detection tradespeople – where the complaint was therefore out of time by some few days – where there was no discretion to extend time Body Corporate and Community Management Act 1997 (Qld), s 36, s 101(2) Queensland Building and Construction Commission Act 1991 (Qld), s 67WA Queensland Building and Construction Commission Regulation 2003 (Qld), Schedule 2C s 16(3)(a) -- 1 of 6 -- 2 McCallum Developments v The Owners Corporation SP53908 [2002] NSWSC 1103 Walker v Queensland Building and Construction Commission [2021] QCAT 32 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The applicant, Body Corporate for Nottingham Terraces CTS 52663 (‘BCNT’), is the body corporate administering a 42 unit townhouse scheme. The developer of the unit complex engaged a builder to build the development and the builder took out a policy of insurance under the statutory home warranty scheme through Queensland Building and Construction Commission (‘QBCC’) in respect of the building work. [2] The work was completed on 26 March 2019. [3] On 25 July 2022 QBCC received a complaint from the applicant body corporate in relation to defective building work done at the units. [4] QBCC subsequently issued a Direction to Rectify to the builder on 2 May 2023 concerning the defective work, but though an extension of time was granted the builder to perform the work, the work was not done. [5] On 19 September 2023 QBCC informed BCNT that its claim under the statutory insurance policy was rejected. The BCNT applied for internal review of that decision, but the decision remained unchanged on internal review. [6] On 22 December 2023 BCNT applied to the Tribunal for external review of the decision rejecting its claim to insurance cover. Statutory Insurance Scheme [7] The provisions of the now repealed Queensland Building and Construction Commission Regulation 2003 (Qld) (‘the regulation’) contains the terms of the insurance cover applicable given the commencement date of the cover, 7 March 2018. Relevantly Schedule 2C of the regulation provides: 16 Limit on assistance (1) A consumer is entitled to claim assistance mentioned in section 15 in relation to a structural defect in the residential construction work if the consumer first becomes aware, or ought reasonably to have become aware, of the structural defect within— (a) for residential construction work that is not substantially complete within 6 months after the cover commencement day for the work— the period— (i) starting on the day that is 6 months after the cover commencement day; and (ii) ending 6 years and 6 months after the period starts; or -- 2 of 6 -- 3 (b) otherwise—6 years and 6 months after the cover commencement day for the work. (2) Also, a consumer is entitled to claim assistance mentioned in section 15 in relation to a defect, other than a structural defect, in the residential construction work if the consumer first becomes aware, or ought reasonably to have become aware, of the defect within 6 months after the day the work is substantially complete. (3) No assistance can be given to the consumer unless the consumer makes a claim mentioned in section 15— (a) for a structural defect—within 3 months after the day the consumer first becomes aware, or ought reasonably to have become aware, of the defect in the work; or (b) for a defect other than a structural defect—within 7 months after the day the residential construction work is substantially complete. (4) In this section— cover commencement day, for residential construction work, means— (a) if the consumer for the work obtains optional additional cover— the day the optional additional cover comes into force for the work; or (b) otherwise—the day cover under the statutory insurance scheme comes into force for the work. Note— See section 68I of the Act for when cover under the statutory insurance scheme comes into force for residential construction work. (emphasis added) [8] Save for minor changes, this provision is identical to that found in the current iteration of the regulation. [9] Consumer is defined by s 67WA of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) as follows: consumer— (a) for residential construction work— (i) means a person who contracts with a licensed contractor to carry out the work; and (ii) includes a person who purchases the work, once completed, if the work is primary insurable work. [10] Person is not defined by the QBCC Act. One therefore turns to the Acts Interpretation Act 1954 (Qld) for assistance. The meaning of commonly used words and expressions in legislation is to be found in Schedule 1 of that Act. There the word person used in an Act is said to include an individual and a corporation. -- 3 of 6 -- 4 Aware [11] The primary issue for determination is when BCNT became aware or ought reasonably to have become aware of the defective work. [12] The body corporate is a separate and distinct identity to that of the various lot owners of the housing scheme. The consumer here was the body corporate. Governance of the body corporate pursuant to the legislative scheme of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) is placed in the hands of the body corporate. [13] By the BCCM Act the body corporate may sue and be sued for rights and liabilities related to the common property as if the body corporate were the owner of the common property.1 [14] A committee acts for the body corporate and a decision by the committee is a decision of the body corporate.2 [15] By s 101(2) of the BCCM Act the committee puts into effect the lawful decisions of the body corporate. [16] The accommodation module rules apply to the subject scheme and by s 57(3) of that module, if a quorum of the committee is present, a motion decided by a majority of the votes of the voting members present and entitled to vote on the motion is a decision of the committee. [17] In 2021 committee members conducted a ‘walk through’ of the common property areas but not the private lots. They observed water staining on balconies and some surface cracking of concrete. The builder assured the committee that the staining was normal caused by water runoff and the minor cracking merely cosmetic. [18] Evidence suggests some lot owners held concerns about defective work causing water entry at the time, however the concerns and thoughts of individual lot owners is something distinct from knowledge and awareness of defects attributable to the body corporate.3 [19] According to submissions made by BCNT in course of the internal review, on 28 March 2022, Body Corporate Systems Pty Ltd (‘BC Systems’), a strata management company, was engaged by BCNT to act as an intermediary to engage Australian Leak Detection Pty Ltd (‘ALD’) to conduct water testing on all lots provide reports about findings. [20] Clearly ALD was engaged because BCNT had concerns about water leaks occurring across the townhouse scheme. [21] Over the period 28 March 2022 to 19 April 2022, ALD inspected all unit balconies (save for Lot 2) and made written reports on each lot inspected. ALD found widespread defective waterproofing work had been done. [22] BCNT says the committee did not receive any reports from ALD other than as follows: 20 April 2022 a report for Lot 26 was provided to Committee Member Ly 1 BCCM Act s 36. 2 Ibid s 100. 3 McCallum Developments v The Owners Corporation SP53908 [2002] NSWSC 1103, [39]. -- 4 of 6 -- 5 29 April 2022 the report for Lot 3 was provided to Committee Member Shortt 9 May 2022 the report for Lot 7 was provided to Committee Member Hopkins 7 June 2022 reports for all other lots were provided to members of the committee in the course of a committee meeting that day [23] Each report identified the lot number of the balcony concerned. Each gave the date of inspection. The first eleven balconies were inspected on 28 March 2022. [24] Lot 26, whose report was provided to Mr Ly, was inspected on 29 March 2022 and the report bears that date. [25] BCNT submits that a body corporate cannot know something until the persons exercising management control over the body corporate, the committee, know that thing. [26] BCNT go further and say a body corporate can only be aware of a matter if a quorum of members of the committee become aware of it, or at the very earliest when at least one member of the committee becomes aware of the matter. [27] In respect of the latter proposition, BCNT submit that, given the dates individual members of the committee received an ALD report, that meant the insurance claim was made within time. With all due respect to the committee, the date calculation is wrong. [28] The complaint, which became the claim for insurance cover, was made on 25 July 2022. Committee Member Ly received a copy of the report concerning Lot 26 on 20 April 2022. The complaint was made more than three months after 20 April 2022. [29] Arguably, the knowledge of an individual committee member does not equate to knowledge of the committee. [30] The provision of a report to Mr Ly was not the only circumstance suggesting BCNT was aware of the findings of ALD more than three months before the complaint was made however. [31] The complaint to QBCC was made by BC Systems on behalf of BCNT. The complaint states specifically that BC Systems, through its officer Mr Stevensen, was lodging the complaint as agent acting for BCNT. [32] In the complaint form, Mr Stevensen confirms that as at date of complaint, the builder had been notified of every item of complaint, all 42 complaints, concerning 42 units. [33] Mr Stevensen goes on to say in the complaint itself that the builder was notified about the defective work on 21 April 2022. He adds in the complaint that the builder responded to that notification asking for details, and in reply, Mr Stevensen forwarded to the builder a ‘summary spreadsheet’ of the defects and by separate emails, given the size of attachments, copies of all the ALD reports. [34] The focus in the terms of insurance cover is on the time when a consumer first becomes ‘aware’ of ‘the defect’. [35] The word ‘aware’ is an adjective defined in the Macquarie Dictionary as– 1. Cognisant or conscious: aware of the danger; aware that we were lost 2. informed and up to date: politically aware -- 5 of 6 -- 6 [36] As defined, to be aware is to be informed about a matter. Awareness is a state of mind and precursor to consequent steps taken pursuant in result of the knowledge gained. Conversely, it might be argued, the step taken may inform about the awareness of the decision maker given the step taken. [37] Mr Stevensen forwarded copies of the ALD reports to the builder as agent for BCNT. There is no evidence to suggest he did not have authority to do that. Indeed, it would be very surprising if he did not. Unfortunately, there is no statement of evidence from Mr Stevensen, nor from any of the other committee members about the matter, simply broad brush unsworn submissions which do not address the point. A statement from Mr Stevenson and the opportunity to question him about the circumstances of his agency, the instructions he held and the party giving the instructions, would have been very helpful. [38] I must do the best I can on the information available. [39] Based on the information available, I am satisfied that the step taken by Mr Stevensen informing the builder about the defects and providing the builder with copies of all the reports evidencing defective work was most probably done on instructions. The instructions came from the committee or a committee member acting on behalf of the committee. It was perhaps Mr Ly. [40] It is rather fanciful to suggest that Mr Stevensen completed the detailed QBCC complaint form, contacted the builder to advise of defective work found at the scheme, then provided the builder with copies of the ALD reports absent instructions to do that. It is also unlikely that that gentleman did so without first reporting back in some way about the defects found by ALD. [41] I find that it is more likely than not that BCNT was therefore aware of the defective work of the builder, within that meaning of the term used in s 16, as at 21 April 2022. [42] A claim on the insurance therefore had to be made within three months after that date. [43] Month is not defined in the QBCC Act or the regulation. Turning once more to the Acts Interpretation Act 1954 (Qld) the word month is defined as a calendar month and calendar month is defined as ‘a period starting at the beginning of any day of 1 of the 12 named months and ending— (a) immediately before the beginning of the corresponding day of the next named month’. [44] Three months after the day (21 April 2022) is to be calculated as starting on 22 April 2022 and ending before the corresponding day three months after that, that is, ending on 21 July 2022. [45] The claim was made to QBCC on 25 July 2022. The claim was out of time. The time constraints under s 16(3)(a), Schedule 2C of the regulation are strict. The complaint was only four days late, but it was none the less out of time. The conclusion seems harsh, but that is the legislation. There is no discretion granted QBCC and therefore the Tribunal to extend the time limit set by s 16(3)(a) of the regulation.4 [46] The decision made by QBCC that the claim under the statutory insurance scheme is refused because it is out of time is confirmed. 4 Walker v Queensland Building and Construction Commission [2021] QCAT 32. -- 6 of 6 --